S., at 435 (emphasis in original) see ibid., n. A “permanent physical occupation” of property occurs, we said, when governmental action “ destroys each of these rights.” 458 U. We explained that “roperty rights in a physical thing have been described as the rights ‘to possess, use and dispose of it.’” Id., at 435 (quoting United States v. This strict rule is apparent from the reasoning in Lor- etto itself. The entire premise of the dissent is that a per se taking under Loretto occurs only where “each and every” stick in the bundle is destroyed: In #SCOTUS speak, “In my view,” and “properly understood,” mean the other 8 Justices have not properly interpreted Loretto. Where some property right is retained by the owner, no per se taking under Loretto has occurred. In my view, however, Loretto-when properly understood-does not encompass the circumstances of this case because it only applies where all property rights have been destroyed by governmental action. Justice Sotomayor’s dissent seeks to redefine how Loretto. I tell my students, if there is a hammer and nail, or bulldozer involved, it’s a per se taking. The Court, per Justice Marshall, held that the installation of the cables constitutes a “permanent physical invasion” (in contrast with a “temporary physical occupation”), and finds that there is a “per se” taking. In this case, the city required homeowners to install wires on their buildings to facilitate the construction of a cable-television network. But then we have Justice Sotomayor’s solo dissent, which hovers between ignoring and rewriting Loretto v. This argument seemed like such a slam dunk, and one that any first-year property student would reach. Eight Justices agreed that the New Deal raisin racket amounts to a per se regulatory taking under Loretto, even though it involved personal rather than real property. USDA is a resounding victory for property rights. The case involves a property dispute over a small amount of cable and metal boxes on the roof of an apartment building in Manhattan, and the courts rejected the appellant's claim that a New York law had taken her property.The 8-1 decision in Horne v. The Court's distinction between a continuous "occupation" and a transient "invasion" has no basis in economic logic or Takings Clause precedent. The Court's test for determining whether a taking has occurred could lead to endless disputes over whether an individual's property has been "physically" touched. The Court's new distinction between "temporary physical invasions" and "permanent physical occupations" is unclear and not significant in this case. The Court's distinction between temporary and permanent physical invasions is untenable, and the constitutionality of temporary invasions should also be subject to a balancing process. The dissenting opinion in this case argues that the Supreme Court's decision to create a rigid per se takings rule for permanent physical occupation authorized by the government is outdated and contradicts previous precedents. The economic impact of the regulation, the extent to which it interferes with investment-backed expectations, and the character of the governmental action are significant factors in determining whether public action works a taking. The legal cases distinguish between various types of takings, including a permanent physical occupation, a physical invasion short of an occupation, and a regulation that restricts the use of property. The Court noted that the economic impact of the regulation and the character of the governmental action are important factors in determining whether compensation is due for a government restriction of property. The Supreme Court ruled that a permanent physical occupation authorized by the government is a taking, and just compensation is due, regardless of the public interests it may serve. The Court of Appeals upheld the statute, but Chief Judge Cooke dissented, stating that the physical appropriation of a portion of the appellant's property is a taking without regard to the balancing analysis courts ordinarily employ in evaluating whether a regulation is a taking. The legal case concerns a New York law that requires landlords to allow cable television companies to install their facilities on their property.
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